But there was another amendment of which none of us thought at the time and in the omission of which lurks the germ that is to destroy … our judges are effectually independent of the nation. But this ought not to be … I deem it indispensable to the continuance of this government that they should be submitted to some practical & impartial controul: and that this, to be imparted, must be compounded of a mixture of state and federal authorities …
Patrick Lee’s Explanation
All leaders should be held accountable by others.
The draft of the Constitution provided that federal judges would serve “during good behavior.” Without a working definition of good behavior and an effective way to enforce it, judges could serve for life. Jefferson opposed anyone holding any office for life, but this escaped him at the time, as it did others. This Autobiography was written 30+ years later. In hindsight only did he see the error, judges who could act with impunity.
He wrote of English judges who answered only to the King. That was too much control from the executive. Removal by a simple majority of the legislative bodies put too much control in lawmakers’ hands. Yet, when judges exceeded their authority, were abusive, became ill or drunkards, there was no reasonable way to remove them.
Jefferson didn’t propose a solution beyond suggesting that the standards for removing a judge should be established by “a mixture of state and federal authorities.” That implies a broad-based consensus, where strong state and national support favored such drastic action.
Jefferson saw a practical danger in a completely independent judiciary, which we’ll pursue in subsequent posts.